Questioning our judges

Marshall Rothstein at the
parliamentary committee hearing to review his nomination to
the Supreme Court of Canada. (February 27, 2006)

John D. Whyte

The retirements later this summer from the Supreme Court of Canada of
Justices
Ian Binnie and
Louise Charron give Prime Minister Stephen Harper his third and fourth
Supreme Court appointments.

Both the retiring justices are from Ontario and it is expected that both the
new justices will be Ontario judges or lawyers. However, neither the
Constitution nor legislation requires that there be three Ontario judges and,
from the perspective of fair representation for jurisdictions and legal systems,
it is not reasonable that Ontario has as many judges as all of the other seven
common-law provinces. It is unlikely, though, that the Prime Minister will want
to challenge a pattern of allocation that has been in place throughout the
court’s history.

There is, however, a clear expectation — although not yet a constitutional
convention — that Harper will need to meet. This is the question of whether it
is prudent to have persons named to the Supreme Court appear at parliamentary
hearings. Both Harper and his predecessor, Paul Martin, announced they intended
to adopt this process, and the appointment of Justice
Marshall Rothstein in 2006 was made subject to a parliamentary review.

On the naming of Justice
Thomas Cromwell to the court in September 2008, the Prime Minister stated
that the appointment would be reviewed by a House of Commons committee. However,
in December the appointment was confirmed and Cromwell was sworn in without a
hearing.

The reason given was that a general election was called soon after the
initial announcement and, shortly after that, Parliament was suspended under the
first of the controversial prorogations. Harper said the appointment needed to
go forward to allow the court to meet its “vital constitutional mandate.”

There was some question whether this weak excuse revealed ambivalence toward
the idea of parliamentary reviews of a candidate for appointment, but the June 3
throne speech contained a commitment to follow the hearing process.

The central question is whether parliamentary reviews of court appointments
are valuable. The American experience of Senate confirmation hearings following
presidential nominations for Supreme Court appointments leads some to believe
that the political review of court appointees is destructive of the idea of
judicial neutrality.

Certainly the American process has led to unseemly and unfair attacks on
nominees. It has also failed to assess actual judicial worth.
Robert Bork was an eminent constitutionalist with a superb intellectual
grasp of the law but was rejected by the Senate;
Clarence
Thomas, who has proven to be a singularly unthoughtful — and consistently
political — jurist, passed through the Senate process (although not with ease).

The process can also create false impressions. The current chief justice,
John Roberts, convinced the Senate that his judicial philosophy was based on
humility and restraint, but his judgments represent an extensive rewriting of
constitutional standards.

Nevertheless, there is a good case for holding parliamentary reviews of
Supreme Court appointees. The exercise tells Canadians something valuable about
the legal process — that while legal decision-making is restrained by rules and
precedent, it is at heart interpretive and thus draws on values, commitments and
perceptions. Judicial judgment is human judgment, and character and integrity
always lie near the heart of the judicial process.

The review process tends to focus on constitutional interpretation and it
shows the degree to which each judge’s understandings of constitutional purposes
— and the contexts in which they operate — determine court results.

The process reminds Canadians of the commitments to fairness, justice,
equality and respect for minorities that are found in our basic laws, and this
can engender an understanding of — and respect for — the rule of law and
constitutional restraints.

Hearings create in politicians an appreciation of the difficulty and
importance of Supreme Court decisions to the political community. Civil
discussion at hearings can show how hard some of these decisions are to make —
both as a matter of discovering the meaning of legal authorities and as a matter
of public values and morality.

When the court makes decisions that politicians are unhappy with, as it
certainly will, it will serve the nation well that political leaders will have
had an opportunity to explore the nature of the judicial task and see its
essential — and difficult — role in Canadian democracy.

Hearings make the court more visible as a key element of the Canadian legal
process and, through this, the court and our law become more understandable,
more human, more a part of our nation’s design and more respected.